Maverick v. Heard

99 Mo. 581 | Mo. | 1889

Black, J.

The plaintiff presented a demand for forty-four hundred and seventy dollars evidenced by a promisory note, to defendant as the assignee of Baldwin for allowance. The assignee disallowed the claim, and the plaintiff appealed to the circuit court where the demand was allowed. The assignee appealed to the Kansas City court of appeals, and the cause was transferred to this court, because the amount in dispute exceeds twenty-five hundred dollars.

That the claim is a just one and should be allowed, if presented in time, is not questioned. The only objection made to it is that it was not presented in time. It is admitted that the assignee designated the tenth day of March, 1885, as the day for the presentation of claims for allowance at his office in Sedalia; that he gave due notice thereof by newspaper publication, and in due time sent to plaintiff by mail a copy of the printed newspaper notice; and that the demand was not presented for allowance to the assignee until March 17, 1885.

Plaintiff resided in St. Louis and knew that Baldwin had made an assignment, and on the twenty-fourth of January, 1885, he sent the note to Mr. Jackson, an attorney at Sedalia, for the purpose of having it allowed by the assignee. The plaintiff states in positive terms that he did not receive the notice mailed to him by the assignee,, and did not know what day the assignee had designated for the presentation of demands. The evidence of the attorney and the assignee shows that they had a conversation concerning the nóte about the time the attorney received it, and from this conversation it appears the attorney was led to believe the assignee would notify him of the time fixed for the allowance of demands, and that the notice was hot given.

The statute makes it the duty of the assignee to give notice of the time and place of adjusting demands, both by newspaper publication and by a letter addressed to the creditor, when his place of abode is known. Creditors who are thus notified and fail to present their claims at the appointed time are precluded from any benefit of the assigned estate : ‘ ‘ Provided, that any creditor who shall fail to lay his claims before said assignee during said term, on account of sickness, absence from the state, or any other good cause, may, at any time before the declaration of the final dividend, file and prove up his claim, and the same may be allowed, and the remaining dividends paid thereon, as in the case of other allowed claims.” R. S. 1879, sec. 373.

What will constitute any good cause within the meaning of this statute must be determined from the facts in each particular case. We think it going too far to say that the claimant must make a showing equal to that required to set aside a default in a court of record, after an assessment of damages. Of course, negligence of the claimant or his attorney is not a cause contemplated by the statute. Here the plaintiff did not receive the notice addressed to him, and which the law contemplates he will receive, and neither he nor his attorney had any actual notice of the time which had been designated by the assignee. While the evidence does not show that the assignee in terms agreed to give the attorney notice, still it is quite clear the attorney understood the assignee would inform him of the time when' fixed. There was but a few days’ delay, and looking to what we conceive to be the object of the presentation and allowance of these demands, and the spirit of the statute, the claim was properly allowed by the circuit court. The judgment is therefore affirmed.

All concur.